BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130005450 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge under honorable conditions to honorable.  He further requests correction of the narrative reason for his separation from "Misconduct-Drug Abuse" to "Convenience of the Government under Early Release Program-Reduction in Force."

2.  The applicant states he believes there was an error in his separation as he was not able to participate in a command-sponsored drug rehabilitation program because of a deployment to Japan for a 30-day field exercise.  He was required to attend the program prior to deployment, but instead was directed to the motor pool by his squad leader to prepare vehicles for mobilization.  He mobilized with his battalion for the deployment and was unable to complete the program.  At the time he did not speak up, but did what he was told.  He does not blame his chain of command as he realizes he should have spoken up to remind them.  After his discharge, he admitted himself into and successfully completed a drug rehabilitation program in 1989.

3.  He also states he deployed in 2004 as a carpenter with KBR (formerly known as Kellogg, Brown, and Root) to Iraq and served continuously for 7.5 years until their withdrawal in December 2011.  It was with great pride that he worked for and served alongside the U.S. Soldiers, Sailors, Airmen, Marines, coalition partners, and civilians in support of Operation Iraqi Freedom and Operation New Dawn.  This service gave him a renewed sense of pride and self-respect that he lost when he was discharged from the Army.  He's always regretted the events that led to his discharge and felt a tremendous betrayal on his part to those he had served alongside on active duty and to his country, but his service in Iraq has given him the opportunity to reconcile his past.

4.  He further states approval of his request will help him economically.  He has attempted to gain employment with a number of government contractors, but his present discharge has prevented him from being hired in spite of his experience and service in Iraq.  After submitting copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 256A (Honorable Discharge Certificate) to prospective employers, he's been informed that these forms contradict each other, even though he received them in the mail together.

5.  The applicant provides:

* DD Form 214
* DD Form 256A
* character-reference letter
* three KBR Logistics Civil Augmentation Program (LOGCAP) III Certificates

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 16 October 1985.  Upon completion of initial entry training, he was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantry).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  However, at the time of his separation he held the rank/grade of private/E-1.

3.  His records contain numerous DA Forms 4856 (General Counseling Form) which show:

	a.  He was counseled on 4 June 1986 for testing positive on a urinalysis.  The applicant attested he had a serious drinking problem and abused illegal drugs and his relationship with his wife had deteriorated.  He also stated that drugs and alcohol controlled his life and he felt that he needed professional help.  As a result, he was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

	b.  He received a monthly counseling on 30 September 1986 wherein his supervisor noted he had established himself in the platoon as an outstanding young Soldier.  It also noted that he was overcoming his recent family problems and had been enrolled in the ADAPCP since June.  He had kept a good attitude and was constantly working hard to regain everyone's respect.  He had 3 weeks remaining in ADAPCP and had no unexcused absences from any of the appointments.  He assured his supervisor that his family and financial problems were in order.

	c.  On 30 April 1987, his monthly counseling noted that his personal and family problems had taken a lot of his time from the platoon.  His supervisor asked if he knew what to do to solve his problem and if he was aware of the various programs available to help him solve them.  It also noted that his appearance and attitude had both deteriorated.

	d.  On 3 June 1987, he was counseled for missing morning formation and having a dirty room.  He was advised that he would be subjected to nonjudicial punishment if this behavior continued.

	e.  On 9 June 1987, he was counseled regarding his family problems and the fact that he had been missing duty time due to appointments.  He was advised that he must produce an appointment slip for all future appointments and was instructed not to schedule any appointments during training exercises because no one would be allowed to come in from the field to attend appointments anymore.  It also noted that sometimes his attitude was good and then he seemed to lose control.

4.  On 6 July 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana.

5.  On 27 July 1987, the applicant was counseled and advised that any further misconduct on his part could result in action to discharge him before his expiration term of service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  He was further advised that he could receive a General Discharge Certificate and his service could be characterized as "under honorable conditions" or he could receive an Other Than Honorable Conditions Discharge Certificate and his service could be characterized as "under other than honorable conditions" and he could expect to encounter substantial prejudice in civilian life.  If his service was characterized as "under honorable conditions" or "under other than honorable conditions," such characterizations would not be automatically upgraded to "honorable."

6.  On 17 August 1987, the applicant's unit commander notified him he was initiating action which could result in separation from the Army for misconduct with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14; specifically, his receipt of a field-grade Article 15 for using marijuana.  He was advised of his rights and the impact of the discharge.  He acknowledged receipt of the notification and requested consulting counsel and a copy of his separation packet.

7.  The applicant was advised of the basis for the contemplated action to accomplish his separation for misconduct and its effects, the rights available to him, and the effects of any action taken by him in waiving his rights.  He declined the opportunity to consult with either military or civilian legal counsel.  He elected not to submit statements in his own behalf.  He also indicated his understanding that if he received a discharge certificate or character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading.  However, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.

8.  The unit commander subsequently recommended the applicant's discharge under honorable conditions (general) based on his misconduct and the intermediate commander concurred with the recommendation.

9.  The separation authority approved the applicant's separation for misconduct (commission of a serious offense) under the provisions of Army Regulation 
635-200, paragraph 14.  He determined the applicant's service would be characterized as under honorable conditions and he would be issued a DD Form 257 (General Discharge Certificate).

10.  On 11 September 1987, the applicant was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as under honorable conditions
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12d
* his separation code was "JKK"
* his narrative reason for separation was "Misconduct-Drug Abuse"

11.  The applicant's records are void of any evidence and he has not provided any evidence that shows he was separated from the Army under the provisions of an "Early Release Program-Reduction in Force."

12.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

13.  The applicant provides:

	a.  a character-reference letter rendered by a pastor on 29 August 1990 which shows the applicant successfully completed "My Brother's Keeper," a 5-month Christian-oriented substance abuse program and

	b.  three KBR LOGCAP III Certificates which show he was recognized for 5 years of being a dedicated team member.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 addresses separation for various types of misconduct, including drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration of term of service.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12d, by reason of misconduct (drug abuse).


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his records should be corrected by upgrading his discharge to honorable and changing the narrative reason for his separation were carefully considered.

2.  The applicant's records are void of any evidence and he has not provided any evidence that shows he was separated from the Army under the provisions of an "Early Release Program-Reduction in Force."

3.  Contrary to his allegation, the evidence clearly shows his chain of command referred him to the ADAPCP in June 1986 in an attempt to help him rehabilitate his drug and alcohol habits.  Therefore, his claim that he was not afforded an opportunity to participate in such a program is unfounded.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.  Therefore, he is not entitled to an upgrade of his general discharge to honorable.

6.  The applicant's discharge was based on drug abuse.  As such, he was properly and equitably discharged with the appropriate narrative reason.

7.  In view of the foregoing, it is inexplicable as to how the applicant was issued an Honorable Discharge Certificate.  However, it is the general policy of the Board not to cause an applicant to become worse off than he or she would have been had the Board not acted in the case.

8.  Additionally, the applicant is advised that the ABCMR does not amend and/or correct military records solely for the purpose of making an applicant eligible for employment/employment benefits or reentry in military service.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ___________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20130005450



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ABCMR Record of Proceedings (cont)                                         AR20130005450



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